Opinion
No. CV-19-03182-PHX-GMS
2022-10-18
Christina M. MADSEN, Plaintiff, v. CITY OF PHOENIX, Defendant.
Alden A. Thomas, Kraig J. Marton, Thomas S. Moring, Maria Crimi Speth, Jaburg & Wilk PC, Phoenix, AZ, for Plaintiff. Chrisanne Marie Gultz, Debora Lynn Verdier, Cavanagh Law Firm PA, Phoenix, AZ, Leslie Steve Tuskai, City of Phoenix Law Department, Phoenix, AZ, for Defendant.
Alden A. Thomas, Kraig J. Marton, Thomas S. Moring, Maria Crimi Speth, Jaburg & Wilk PC, Phoenix, AZ, for Plaintiff. Chrisanne Marie Gultz, Debora Lynn Verdier, Cavanagh Law Firm PA, Phoenix, AZ, Leslie Steve Tuskai, City of Phoenix Law Department, Phoenix, AZ, for Defendant. ORDER G. Murray Snow, Chief United States District Judge
Before the Court is the City of Phoenix's ("Defendant") Rule 50(a) Motion for Judgment as a Matter of Law (Doc. 275). For the following reasons, Defendant's motion is denied.
BACKGROUND
Christina Madsen ("Plaintiff") filed a complaint against the City of Phoenix ("Defendant") on April 12, 2019, alleging violations of Title VII, § 1983, and other Arizona state laws. (Doc. 1.) At issue in the case is the workplace conduct of Michael Graci ("Mr. Graci"), an Assistant Aviation Director for the Defendant, toward Plaintiff, who served as the Deputy Director of Business and Properties ("B&P") for the Defendant. After summary judgment, the only remaining issue in the case was Plaintiff's hostile work environment ("HWE") claim. (Doc. 219 at 9-10.) This Court held a four-day jury trial from April 19-22, 2022, on the HWE claim. At the conclusion of Plaintiff's case, Defendant made an oral motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(a) and filed a written motion the next morning. (Tr. at 686:25-687:19); (Doc. 275.) Defendant based its motion on three grounds: (1) Mr. Graci's conduct was not "because of sex"; (2) Mr. Graci's conduct towards Plaintiff was not sufficiently severe or pervasive; and (3) the City is not liable because it did not, and could not, have known about the alleged harassment. (Doc. 275.) The jury returned a verdict in Plaintiff's favor. Following the verdict, the Court allowed Plaintiff to respond to the Motion for Judgment as a Matter of Law. After the parties had fully briefed the issues, the Court held oral argument on September 7, 2022.
The Court permitted Defendant to refile its motion after the conclusion of trial to include citations to trial testimony. The updated motion is located at Doc. 278-1 and is treated as the operative motion for purposes of this order.
DISCUSSION
I. Legal Standard
Under Rule 50(a), a district court may grant judgment as a matter of law only if "a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed. R. Civ. P. 50(a)(1); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In reviewing a Rule 50(a) motion, a court does not make credibility determinations or weigh the evidence. Reeves, 530 U.S. at 150, 120 S.Ct. 2097. A court must review the entire record, "draw all reasonable inferences in favor of the nonmoving party," id. at 150, 120 S.Ct. 2097, and "may not substitute its view of the evidence for that of the jury." Krechman v. County of Riverside, 723 F.3d 1104, 1110 (9th Cir. 2013) (quoting Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1283 (9th Cir. 2001)). Additionally, a court "must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves, 530 U.S. at 151, 120 S.Ct. 2097. "The court may only give credence to evidence favoring the moving party if that evidence is 'uncontradicted,' 'unimpeached,' and 'comes from disinterested witnesses.' " Thomas v. Cannon, 289 F. Supp. 3d 1182, 1193 (W.D. Wash. 2018) (quoting Reeves, 530 U.S. at 151, 120 S.Ct. 2097). "The test applied is whether the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict." Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006). II. Analysis
Title VII prohibits discrimination against "any individual with respect to his . . . terms, conditions, or privileges of employment" because of their sex. 42 U.S.C. § 2000e-2(a)(1). "This includes a prohibition against the creation of a hostile work environment." Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 686 (9th Cir. 2017); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)) ("When the workplace is permeated with 'discriminatory intimidation, ridicule, and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated.") (citations omitted).
To prevail on her hostile work environment claim under Title VII, Plaintiff needed to show at trial that "she was [1] subjected to sex-based harassment that was [2] sufficiently severe or pervasive to alter the conditions of employment, and [3] that her employer is liable for this hostile work environment." Christian v. Umpqua Bank, 984 F.3d 801, 809 (9th Cir. 2020). The Court considers each element in turn.
A. Because of Sex
A sex-based hostile work environment claim "must rest on proof that such conduct took place because of [the] plaintiff's [sex]." Steinaker v. Sw. Airlines, Co., 472 F. Supp. 3d 540, 556 (D. Ariz. 2020). However, the conduct at issue need not be "overtly sex- or gender-specific." EEOC v. Nat'l Educ. Ass'n, Alaska, 422 F.3d 840, 844 (9th Cir. 2005). A plaintiff may meet her burden by offering "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace." Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). A court should consider "differences in subjective effects," as well as "differences in objective quality and quantity," in "determining whether or not men and women were treated differently, even where the conduct is not facially sex- or gender-specific." Nat'l Educ. Ass'n, 422 F.3d at 846 (considering differences in how men and women subjectively reacted to alleged harasser's aggressive conduct as relevant to determining whether facially sex-neutral pattern of abuse was discriminatory).
The jury had a legally sufficient basis for concluding that Mr. Graci's conduct was sex-based. Plaintiff presented sufficient evidence that Mr. Graci treated women differently than men because his derogatory comments and angry outbursts appeared to be directed primarily, if not wholly, at women. Mr. Graci's conduct began with derogatory comments toward and about women. Plaintiff presented evidence that Mr. Graci used derogatory language to refer to women on at least three occasions. Plaintiff, Ms. Gomez, and Mr. Maheu testified that he referred to multiple women—including Plaintiff—as a "bitch." (Tr. at 174:9-11; 267:9-268:4; 626:14-24.) Plaintiff and Mr. Maheu believed his use of the term to be sexist, (Tr. at 267:11-14; 626:20-22), while Ms. Gomez believed it was used out of anger. (Tr. at 174:17-19.) Mr. Graci also reportedly said that Ms. Ostreicher got her position by "laying on her back" and that another Aviation Department employee sided with a woman against Mr. Graci because she was "bouncing her boobs in front of him." (Tr. at 175:15-20; 584:9-11.)
As stated in the Court's Summary Judgment Order, Plaintiff's hostile work environment claim is limited to Mr. Graci's aggressive conduct, and not his sex-based comments. (Doc. 219 at 4 n.2.) Both parties reference Mr. Graci's sex-based comments in arguing whether a jury could conclude his aggressive conduct towards Plaintiff was because of her sex. Although the Court has determined that the comments themselves did not create a hostile work environment, they are relevant to determining whether Mr. Graci's aggressive conduct towards Plaintiff, while facially sex-neutral, was motivated by her sex.
While Defendant is correct that "whether the word 'bitch' is evidence of sex-based hostility depends entirely on context," it is the province of the jury to weigh Mr. Graci's use of the word (and his other remarks), in conjunction with his outbursts and other conduct, to determine whether his aggressive conduct towards Plaintiff was motivated by her sex. (Doc. 303 at 4.) Here, faced with two witnesses who believed he used the word in a sexist manner, Mr. Graci's series of outbursts towards women, and Plaintiff's testimony that he treated men and women differently, a jury could reasonably find Mr. Graci's use of the term "to be one piece of evidence among many, a derogatory term indicating sex-based hostility." Costa v. Desert Palace, Inc., 299 F.3d 838, 861-62 (9th Cir. 2002). A reasonable jury could determine that Mr. Graci's comments, in conjunction with later outbursts toward women, sufficiently demonstrated hostile conduct based on sex.
In the latter months of Mr. Graci's employment with the City, he exhibited multiple angry outbursts toward other employees, most of whom were women. On March 22, 2018, after Ms. Gomez moved one of Mr. Graci's meetings, she approached him to discuss his reaction. In that conversation, he "yelled" at her with a red face and appeared visibly angry. (Tr. at 183:9-11; 183:23-184:1.) Later that day, Ms. Gomez reported the incident to Plaintiff, telling her that she had never been treated like that before. (Tr. at 599:17-20.) Plaintiff testified that Ms. Gomez appeared visibly shaken. (Id.) Ms. Gomez also testified that she did not wish to be alone with Mr. Graci after the outburst. (Tr. at 199:12-14.)
As to her own interactions with Mr. Graci, Plaintiff testified that he became visibly angry towards her on several occasions, including: when he was initially unable to hire whom he wished in December 2017 (Tr. at 585:3-586:4); when Plaintiff and Mr. Graci discussed his difficulties with Ms. Benton in February 2018 (Tr. at 626:14-16); (TX 3 at 2); and when she met with him on March 23, 2018, to discuss his behavior towards Ms. Gomez the day before (Tr. at 601:4-7, 21-22; 602:2-4). From her desk outside Plaintiff's office, Ms. Gomez heard Mr. Graci raise his voice. (Tr. at 201:14-20.) After the meeting, Plaintiff appeared "[s]haken and flushed." (Tr. at 202:6.) Finally, Mr. Maheu testified that in April 2018, Plaintiff came to his office "visibly upset, in tears" and told him that Mr. Graci had been intimidating and angry with her in one-on-one meetings. (Tr. at 272:9-22.) As a result, Plaintiff testified that she was afraid to give him feedback in a one-on-one setting. (Tr. at 617:6-10.) Plaintiff also testified that she never saw Mr. Graci treat the men in B&P like he treated the women. (Tr. at 628:14-16.)
By contrast, the only evidence of Mr. Graci expressing anger toward a man was when he had an outburst towards Mr. Maheu in April 2018. Even so, Mr. Graci's outburst towards Mr. Maheu was about Plaintiff: he believed Plaintiff had gone behind his back and given direction to his subordinates. (Tr. at 286:14-25.) Mr. Maheu did not testify that he felt afraid of Mr. Graci after this outburst or that he was emotionally affected as a result. (Tr. at 291:1-18.)
The jury was entitled to consider these outbursts as evidence that he objectively treated women and men differently. See Nat'l Educ. Ass'n, 422 F.3d at 846 (holding that a reasonable jury could find supervisor treated men and women differently when he acted verbally and physically aggressive towards both men and women but did so more regularly with women). The Ninth Circuit has held that "an unbalanced distribution of men and women in relevant employment positions, and the fact that some men were also harassed, does not automatically defeat a showing of differential treatment." Id. It has also said that "[t]he precise determination of how much qualitative and quantitative difference in treatment is enough circumstantial evidence to support a Title VII claim is a question for the jury." Id. at 847. Plaintiff demonstrated sufficient evidence that Mr. Graci's hostile behavior toward women was qualitatively and quantitatively different than his behavior toward men.
Qualitatively, a reasonable jury could have determined that Mr. Graci's conduct toward women appeared to be more severe in nature and effect than that toward men. His comments toward and about women consisted of derogatory names and sexual references, including calling multiple women a "bitch" and stating that Ms. Ostreicher got her position "lying on her back." By comparison, Ms. Gomez testified that Mr. Graci called Kyle Binder a "golden boy" and that he called Ken Boudreau "incompetent." (Tr. 212:13-212:22.) A reasonable jury could conclude that the comments toward women were more severe in nature. Mr. Graci himself testified that Plaintiff repeatedly told him he needed to be careful how he spoke to women because he could get sued for sexual harassment. (Tr. 716:24-717:3; 723:13-14.) This testimony indicates that Plaintiff could have believed that Mr. Graci's comments and behavior were based on sex. A jury could also conclude that Plaintiff and Ms. Gomez subjectively perceived Mr. Graci's outbursts differently than Mr. Maheu did. Based on the testimony that Mr. Graci caused both Ms. Gomez and Plaintiff to cry and appear visibly shaken because of his outbursts—and the absence of similar testimony about Mr. Maheu or any other male employee—a jury could conclude that his "behavior affected women more adversely than it affected men." Nat'l Educ. Ass'n, 422 F.3d at 845.
Quantitatively, Plaintiff also demonstrated that Mr. Graci's derogatory comments and outbursts occurred more frequently towards women than towards men. While the parties disagree about the exact number of outbursts that the jury could have accounted for, the jury heard testimony about at least six outbursts with women and one outburst with a man. As the Ninth Circuit noted in National Education Ass'n, "[a] few instances of hostile behavior toward male employees . . . do not erase the possibility that a reasonable jury might find that the pattern of abuse directed at female employees was discriminatory." Id. at 846. Thus, Plaintiff put forth evidence that Mr. Graci's outbursts happened more often with women than with men.
Plaintiff alleges that the jury heard testimony about ten angry outbursts with women. (Doc. 311-1 at 45.) Because some of the outbursts that Plaintiff includes in that number are interactions with insufficient details in the record to adequately determine the nature of the interaction, the Court declines to adopt this exact number. Similarly, Defendant argues that Plaintiff's note that she had heard of several other incidents involving Janie Sue and Ed Faron is evidence of other angry outbursts with men. (Doc. 312-1 at 11.) This evidence, too, is insufficiently detailed for the Court to include in the number of outbursts.
Plaintiff's evidence demonstrated that Mr. Graci's hostile conduct toward women differed in nature, effects, and frequency compared to his conduct toward men. Consequently, Plaintiff presented sufficient evidence for a reasonable jury to conclude Mr. Graci's conduct was based on sex.
B. Severe or Pervasive
To show that Mr. Graci's conduct was severe or pervasive enough to alter the conditions of Plaintiff's employment, she needed to show that her workplace environment was "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 871-72 (9th Cir. 2001) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). This requires consideration of "all the circumstances, including 'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' " Id. (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). In weighing the totality of the circumstances, "[t]he required level of severity or seriousness 'varies inversely with the pervasiveness or frequency of the conduct.' " Nichols, 256 F.3d at 872 (quoting Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)).
In a sex-based hostile work environment case brought by a plaintiff who is a woman, "[t]he objective measure of an abusive working environment is set by what a reasonable woman would consider abusive." Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008). "[H]arassing conduct directed at other persons . . . must be considered," so long as the plaintiff was aware of the conduct. Christian, 984 F.3d at 811. Additionally, "[w]hen severity is questionable, 'it is more appropriate to leave the assessment to the fact-finder than for the court to decide the case' " as a matter of law. Fried v. Wynn Las Vegas, LLC, 18 F.4th 643, 648 (9th Cir. 2021) (quoting Davis, 520 F.3d at 1096).
Plaintiff presented evidence that Mr. Graci was angry and intimidating towards her on at least three occasions—December 2017, February 2018, and March 2018—and that she witnessed Mr. Graci's outburst towards Ms. Gomez in March 2018. The jury heard testimony that Mr. Graci inspired fear and substantial emotional disturbance in both Plaintiff and Ms. Gomez and that both women no longer wished to meet alone with him. (Tr. 199:12-14; 378:10-12.) As for Plaintiff, Mr. Graci's impact on her working conditions continued through at least late April 2018 when, according to Mr. Maheu's testimony, she came into his office "emotionally upset, visibly upset, in tears" because Mr. Graci had become intimidating and angry with her in "some one-on-ones." (Tr. at 272:10-20.)
Ultimately, the Court finds that a reasonable jury could have concluded that the conduct became sufficiently severe or pervasive around March of 2018. Given the effect Mr. Graci's conduct had not just on Plaintiff, but also Ms. Gomez, a jury could conclude that a reasonable woman would view Mr. Graci's repeated outbursts during the relevant period "as an escalating pattern of behavior that caused her to feel afraid in her own workplace." Christian, 984 F.3d at 810. Nevertheless, there are two factors that make this a close case: the escalating (rather than initially severe) nature of Mr. Graci's conduct and the fact that Plaintiff was Mr. Graci's supervisor. The Court addresses the implications of each factor in turn.
i. Nature of Conduct
The fact that Mr. Graci's conduct started as "rude and condescending" comments and behavior, (Tr. 227:15-228:18) and then escalated toward angry outbursts toward women can support an HWE claim. It is clear that "simple teasing, offhand comments, and isolated incidents (unless extremely serious)" do not rise to the level of severe or pervasive for an HWE claim. Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Such comments and incidents, however, must be considered when determining whether the conduct is severe or pervasive overall. The Ninth Circuit has recognized that because individuals can experience harassment "not as isolated incidents but as an escalating pattern of behavior," the incidents in question "should be evaluated together" rather than in isolation. Christian, 984 F.3d at 809-10. It is likely that, when viewed in isolation, each of Mr. Graci's December comments, and perhaps even his individual outbursts in March, are not severe or pervasive as a matter of law. But the Court views all the evidence of Mr. Graci's conduct as a collective, not as isolated incidents. Because Mr. Graci's conduct escalated from rude comments to angry outbursts causing multiple employees, including Plaintiff, to feel afraid or intimidated, the Court cannot say that Mr. Graci's entire course of conduct is insufficiently severe or pervasive as a matter of law.
Defendant's in-circuit authorities do not require a conclusion to the contrary. In Kortan v. California Youth Authority, the plaintiff brought a hostile work environment claim because her supervisor used derogatory language about other female employees. 217 F.3d 1104 (9th Cir. 2000). The Ninth Circuit held that the supervisor's use of the terms "[M]adonna," "[R]egina," "castrating bitch," "bitches," and "histrionics" was insufficient to rise to the level of objective offensiveness, in large part because the bulk of his comments were made "in a flurry" on a single day. Id. at 1107, 1110. Here, by contrast, Plaintiff's claim rests primarily on allegations of Mr. Graci's conduct spanning several months and multiple incidents. As noted above, his individual comments are likely insufficiently severe or pervasive, but when combined with escalating behaviors over time, this case is distinguishable from Kortan.
Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), is a closer call, but nevertheless distinguishable. There, the plaintiff was groped several times within minutes by a coworker, who ceased his behavior when a third coworker arrived. Id. at 921. The court found the conduct was not sufficiently pervasive because the plaintiff was groped on a single day, and the offending employee was immediately placed on administrative leave and subsequently terminated. Id. at 924. While the specific conduct alleged in Brooks was likely more egregious than Mr. Graci's outbursts, Mr. Graci's conduct escalated over a span of several months and incidents. Therefore, unlike Brooks, Plaintiff was faced with an "unknown potential" for the situation "to escalate" because Mr. Graci remained her direct report through early May 2018. Christian, 984 F.3d at 811.
While not identical to this case, EEOC v. National Education Ass'n, Alaska, 422 F.3d 840 (9th Cir. 2005), guides the Court's analysis. There, a supervisor of the defendant labor union regularly shouted at and physically intimidated his female employees. Id. at 843. Because of the supervisor's repeated verbal abuse and physical intimidation, his female employees felt physically threatened, operated in a "state of panic," and went so far as to call the police on one occasion. Id. In that case, the "conduct in question was allegedly a 'daily thing,' " so there was "little question that a reasonable juror might infer" the supervisor's conduct was "sufficiently severe to satisfy the statute." To be sure, Defendant is correct that National Education Ass'n is different, most importantly because the level of harassment in Plaintiff's case took place less frequently and was arguably less extreme. (Doc. 278-1 at 8-9.) But the case still stands for the proposition that a pattern of verbal abuse and physical intimidation towards women in the workplace can create a working environment that a reasonable woman would find hostile or abusive. In this case, the evidence presented to the jury demonstrates that, while the Plaintiff may have been upset by Mr. Graci's conduct as early as November or December 2017, several instances of rudeness and even subordinate behavior over a period of four or five months likely does not present sufficient evidence as a matter of law to constitute sexual harassment. Nevertheless, when Plaintiff indicated to Ms. Pitts that the rudeness and insubordination had grown to the point that she was afraid to meet with Mr. Graci, "due to his explosive and aggressive behavior." (TX 7), such alleged physical intimidation indicated a sufficient pervasiveness together with previous events, upon which a jury could find a hostile work environment.
ii. Plaintiff's Supervisor Role
The second factor to consider in this case is the fact that Plaintiff was Mr. Graci's immediate supervisor. This factor is relevant to the Court's weighing of the severity or pervasiveness of the harassment, but it is not dispositive. While it may be uncommon for a hostile work environment to be formed when a supervisor is harassed by a subordinate, "Title VII . . . makes no relevant distinctions between managerial and other employees." Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir. 2005). Therefore, the hierarchical relationship between Plaintiff and Mr. Graci is but one of the circumstances that must be considered. See Cronin v. United Serv. Stations, Inc., 809 F. Supp. 922, 929 (M.D. Ala. 1992) (denying summary judgment on hostile work environment theory when subordinate employee regularly made sexualized comments and engaged in threatening and bellicose conduct directed at his female supervisor); Humphreys v. Med. Towers, Ltd. 893 F. Supp. 672, 683 (S.D. Tex. 1995) (denying summary judgment when subordinate called supervisor a "bitch" and a "whore," threw a paperweight at her, and undermined her ability to give direction to employees under her supervision).
Thus, the fact that Plaintiff was Mr. Graci's supervisor is relevant insofar as it guides the Court's understanding of whether the conduct, under the totality of the circumstances, was severe, physically threatening, humiliating, or merely offensive. Nichols, 256 F.3d at 871-72. It is certainly foreseeable that as a supervisor, Plaintiff may have encountered immature or insubordinate behavior from her subordinates and would be expected to address that behavior. See Odom v. St. Louis Cmty. Coll., 36 F. Supp. 2d 897, 903 (E.D. Mo. 1999). For example, when Mr. Graci initially made offensive comments about Ms. Ostreicher and Ms. Benton in December 2017, it is not unreasonable that Plaintiff was expected to confront Mr. Graci to address these comments, and she apparently did so. Nevertheless, the Court cannot say that because of Plaintiff's position of authority, Mr. Graci's conduct is insufficiently pervasive as a matter of law. While Mr. Graci's initial conduct may have been merely insubordinate or inappropriate, see Odom, 36 F. Supp. 2d at 903, a reasonable jury could conclude that his conduct had escalated beyond simple insubordination that a supervisor should be expected to address alone. For example, by March 2018, Plaintiff began to feel afraid to meet with Mr. Graci (TX. 7 at 2), he caused her to "feel intimidated, visibly upset, [and] in tears," and she asked for assistance because of his aggressive behavior and was visibly upset after interacting with him (TX 7 at 2; Tr. 272:9-23).
Defendant's cases that speak to the issue are also distinguishable. In Defendant's cases that found no hostile work environment, the supervisor-plaintiff did not claim their subordinate engaged in or caused physical intimidation. See Pfahl v. Synthes (USA), 13 F. App'x 832, 835 (10th Cir. 2001) (finding no abusive working environment when subordinates occasionally spoke of the plaintiff in "derogatory, gender-based terms," a coworker hugged the plaintiff once, and several items were left on the plaintiff's desk, including a bottle labelled "holy water for she-devils" and some Reese's Pieces wrappers); Odom, 36 F. Supp. 2d at 903 (dismissing hostile work environment claim when evidence did not reflect that subordinate's immature behavior intimidated or threatened the plaintiff). Defendant's cases stand for the proposition that mere insubordination is not a sufficient basis for an HWE claim. However, Plaintiff presented sufficient evidence to demonstrate that Mr. Graci's behavior extended beyond mere insubordination; as such, the Court will not "substitute its view of the evidence for that of the jury." Krechman, 723 F.3d at 1110.
C. Employer Liability
An employer is liable under Title VII for harassment committed by a coworker against a plaintiff if the employer "knew or should have known of the harassment but did not take adequate steps to address it." Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001). An employer's response is adequate if it is "reasonably calculated to end the harassment." Ellison, 924 F.2d at 882. Thus, the question in this case is not only if the City was on notice, but when it was on notice relative to its adequate curative measures.
The Court will not deviate from the general HWE employer liability standard because Mr. Graci was Plaintiff's subordinate instead of her coworker. But see, e.g., Lyles v. Dist. of Columbia, 17 F. Supp. 3d 59, 70 (D.D.C. 2014) ("[A]n employer will not be liable for the sexual harassment of a supervisor by a subordinate where the supervisor-plaintiff had the ability to stop the harassment and failed to do so."); Knudsen v. Bd. of Supervisors of the Univ. of La. Sys., No. 14-382, 2015 WL 1757695, at *4-6 (E.D. La. Apr. 15, 2015). While the relative hierarchical positions of the Plaintiff and Mr. Graci are perhaps less common in an HWE claim, the Ninth Circuit has addressed a comparable situation. In Galdamez v. Potter, the defendant argued that it had no duty to investigate or remedy harassment by third parties against the supervisor-plaintiff because "as a management-level employee," she was responsible for "remedying any such harassment herself." 415 F.3d at 1022. The Ninth Circuit rejected this argument because Title VII does not distinguish between supervisors and other employees, and consequently the plaintiff was "as entitled as any other employee to the protections of Title VII." Id. at 1023. Galdamez thus compels the Court to conclude that Plaintiff was entitled to the same protections under Title VII as any employee, notwithstanding her role as a supervisor. See also Mingo v. Roadway Express, Inc., 135 F. Supp. 2d 884, 895 (N.D. Ill. 2001) (rejecting similar argument because "plaintiff's status as supervisor of those harassing [her] . . . is a non-issue").
Nevertheless, the fact that Plaintiff was Mr. Graci's supervisor is a factor to consider when determining the City's notice and the appropriateness of its remedial response. To the extent that the City could reasonably expect Plaintiff to address Mr. Graci's behavior in her supervisory role, a jury could not conclude that Defendant was on notice of a hostile work environment or failed to take curative measures. For example, in November and December 2017, when Mr. Graci began exhibiting rude and condescending behavior, which, alone, were not sufficient to constitute sexual harassment, Plaintiff, as his direct supervisor, was likely the proper employee to address that behavior. See Odom, 36 F. Supp. 2d at 903. However, a reasonable jury could find that as Mr. Graci's conduct increased in severity, the City's notice of his behavior increased, as did its obligation to take remedial measures.
Plaintiff has presented sufficient evidence from which a reasonable jury could conclude Defendant knew or should have known of Mr. Graci's severe or pervasive conduct at least by late March of 2018. The jury heard testimony that Plaintiff expressed concerns about her interactions with Mr. Graci to several individuals, including HR representatives Ms. Bailey and Ms. Pitts. Ms. Bailey testified that Plaintiff told her on several occasions that she did not feel safe around Mr. Graci because of his outbursts, and that Plaintiff believed Mr. Graci was "chauvinistic." (Tr. at 436:1-3; 443:6-12; 462:5-15.) Ms. Bailey also testified that she relayed Plaintiff's concerns to Ms. Pitts, who told her that "[s]he would handle it," but that it was not HR's "job" to provide assistance to Plaintiff because of her position in senior management. (Tr. at 444:3-15.) As for Ms. Pitts, Plaintiff testified that when she submitted Mr. Graci's six-month Performance Management Guide (PMG) for Ms. Pitt's review, she also showed Ms. Pitts the supervisory notes she kept on Mr. Graci's performance. (Tr. at 595:4-18; 604:22-605:24.) Plaintiff testified that she observed Ms. Pitts review these notes. (Tr. at 605:22-24.) During this meeting, Plaintiff asked Ms. Pitts to be in the room with her when she delivered the PMG to Mr. Graci because it amounted to a bad review of his performance as a probationary employee. (Tr. at 616:16-24.) She also testified that she told Ms. Pitts she was afraid of Mr. Graci's reaction to a negative review because of his aggressive temperament. (Tr. at 616:20-22; 617:4-10; TX 7 at 3.)
Plaintiff testified that she took notes in meetings by hand and would type them up later. (Tr. at 617:21-618:8.) She also testified that when the notes were done, she would put them in the supervisory file she presented to Ms. Pitts. (Tr. at 619:8-9.) Accordingly, the jury could conclude that Ms. Pitts was presented with at least some of the typed notes that were admitted into evidence. (See TX 1-11.)
The jury also heard testimony from Laura Ingegneri, Plaintiff's expert witness on municipal HR practices. Ms. Ingegneri testified that in her opinion, a report of sexual harassment under a municipal policy like the one implemented by Defendant did not need to take a specific form. (Tr. at 489:5.) She opined that a report need not use "any specific words," provided that the words "might then lead someone to believe that harassment is occurring." (Tr. at 497:12-16.) In her opinion, Plaintiff's reports to Ms. Bailey and Ms. Pitts amounted to "red flags" that should indicate potential sexual harassment to an "HR professional." (Tr. at 486:8-19; 487:2-4.) She also opined that Plaintiff made adequate reports under Defendant's sexual harassment policy when Plaintiff spoke to Ms. Bailey and Ms. Pitts. (Tr. at 489:23-490:3.) While Defendant argues that Plaintiff should have been more explicit in making a report to City representatives, Ms. Ingegneri's testimony creates a factual basis from which a reasonable jury could conclude Plaintiff adequately discharged her duty to report potential sexual harassment to Defendant. Therefore, a reasonable jury could find that Defendant knew, or should have known, of Mr. Graci's conduct.
Plaintiff's workplace was governed by an administrative regulation prohibiting sexual harassment. (TX 54.) The regulation broadly defined sexual harassment to include "verbal or physical nonsexual conduct that denigrates or shows hostility toward an individual because of his or her sex" and "profane or vulgar language." (Id. at 3.) Employees were required to make a report if they believed they had been "subjected to conduct prohibited by the policy." (Id.) Reports could be made either orally or in writing to a supervisor, a departmental HR representative, the Equal Opportunity Department ("EOD"), the HR Department, the City Manager's Office, or a hotline known as the Integrity Line. (Id. at 5.) While it is true that Ms. Bailey was instructed not to handle HR incidents regarding Mr. Graci any longer, she remained the designated HR representative for B&P. (Tr. at 427:25-428:1.) Therefore, a jury could conclude that Plaintiff was entitled to report potential sexual harassment to Ms. Bailey under Defendant's policy even if Ms. Bailey could not otherwise engage in HR functions as they pertained to Mr. Graci. See Swinton, 270 F.3d at 811 (holding that for purposes of imputing employee's acts or failures to act to company, company could not disclaim employee as "too 'low-level' " when written antidiscrimination policy required the specific employee to report racial harassment).
Considering the timeline of events, the final issue is whether the Defendant took adequate curative steps "reasonably calculated to end the harassment." Ellison, 924 F.2d at 882. Ms. Reynolds testified that sometime in April 2018 Plaintiff and Mr. Maheu came to her office with concerns about Mr. Graci being rude and insubordinate. Ms. Reynolds instructed Maheu and Plaintiff to go to HR to begin the documentation process that, in most cases, would need to precede Mr. Graci's termination. (Doc. 275 at 15.) In early May, when Mr. Graci filed a sexual harassment complaint against Plaintiff, he was removed from her supervision. It was, therefore, Mr. Maheu who both delivered the PMG review to Mr. Graci that Plaintiff had prepared and who apparently terminated Mr. Graci about a month after he became his supervisor.
Plaintiff does not contest that Ms. Reynolds instructed her to document Mr. Graci's file so that he could be terminated. Rather, Plaintiff relies on Nichols v. Azteca Restaurant Enterprises to assert that "instructing Madsen to document the interactions without taking further action is evidence of the City's insufficient response because it did not deter future harassment." (Doc. 295 at 17); 256 F.3d 864, 876 (9th Cir. 2001). Of course, there are distinctions between this case and Nichols. In Nichols, an employee was being harassed by a supervisor and coworkers, and the only remedial step the employer took was telling the employee to inform a general manager if the conduct continued and "conduct[ing] a handful of spot checks." 256 F.3d at 876. Here, Ms. Reynolds testified that in April 2018, the Plaintiff was instructed to go to HR and start the process of progressive discipline to terminate Mr. Graci. (Tr. 232:9-15.)
Unlike in Nichols, the Defendant was not merely waiting to see if future incidents occurred to its employee. Instead, the Plaintiff, who is also a supervisor, was instructed to put together sufficient documentation of past incidents to properly demonstrate cause to terminate Mr. Graci. Additionally, supervision of Mr. Graci was transferred in May, and Mr. Graci was terminated in June. Yet, based on the evidence presented at trial, a reasonable jury could conclude that once the City had reports that Plaintiff was actually afraid of Graci in late March, it did not appropriately take action to protect her from the sexually harassing environment until it either removed Mr. Graci from her supervision in May or terminated his employment in early June. Although this is not a long period, it is a sufficient period on which a reasonable jury could base a liability determination.
Defendant points to the many available forms of investigation and discipline as evidence that Plaintiff could have taken further steps to end the harassment. (Doc. 275 at 16.) While the jury was entitled to consider the curative actions available to the Plaintiff, it was likewise entitled to weigh the curative measures available to the Defendant. The jury could also consider Ms. Ingegneri's testimony that Defendant should have investigated Plaintiff's reports, (Tr. at 490:25) and her observation that Defendant did not adequately investigate Plaintiff's reports, (Tr. at 484:16-17). The Court will not re-weigh this evidence.
CONCLUSION
Judgment as a matter of law is inappropriate because Plaintiff presented sufficient testimony and evidence from which a reasonable jury could find that Mr. Graci's conduct was motivated by Plaintiff's sex, that his conduct was severe or pervasive, and that Defendant knew or should have known of his conduct and failed to adequately respond. Accordingly,
IT IS ORDERED that Defendant's Rule 50(a) Motion for Judgment as a Matter of Law (Doc. 275) is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment in this matter for Plaintiff and terminate this case.